Kooee v Primus: No Misleading and Deceptive Conduct where Reliance not Established

The Full Federal Court in Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2011] FCAFC 119 has allowed the appeal of Kooee Communications Pty Ltd (Kooee) ruling that it had not engaged in misleading and deceptive conduct.

Kooee appealed to the Full Court of the Federal Court to contend that the primary judge had erred in finding that it had engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 resulting in Primus Telecommunications Pty Ltd (Primus), the respondent, incurring financial losses. Kooee also contended in the appeal that Primus was estopped from claiming damages in accordance with the principle of Anshun estoppel.

On appeal, the Federal Court held that this was not a case in which it would have been unreasonable for Primus not to have raised their claims in an earlier proceeding and thus the Anshun principle cannot be said to come into play. However, regarding the alleged misleading and deceptive conduct issue, the court reasoned that ‘this is not a case in which reliance might be presumed merely because Primus entered into a separation deed…’ The court found that neither a practical common-sense approach to causation nor the principle that the impugned conduct need only be one of the causes of the actions in question assists Primus’ case. 

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